United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Donald Terrell Rice is a federal inmate currently housed at USP-Atwater in Atwater, California. On May 5, 2014, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. On June 4, 2014, Respondent United States of America (the "government") filed a motion to dismiss or for summary judgment, asserting that Movant's § 2255 motion is barred as successive, and that, in any event, his claim falls on the merits. By order also filed June 4, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. Movant filed a response in opposition to the government's motion on June 23, 2014.
I. FACTS AND PROCEDURAL HISTORY
On November 24, 1998, Movant and two other men robbed the Gold Pot Casino in Inman, South Carolina. Later that day, Movant and another individual robbed the L'il Cricket Tobacco Outlet in Lyman, South Carolina. Guns were used in both instances. Movant was indicted on September 29, 1999, and charged with interference with commerce by threat or violence, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1951 and 2 (Counts 1 and 3); using, carrying, and brandishing a firearm during and in relation to a crime of violence, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 2 and 4); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 5). On December 20, 1999, Movant pleaded guilty to all charges contained in the indictment.
A presentence investigation report (PSR) was prepared by the United States Probation Office (USPO). The USPO determined that, pursuant to U.S.S.G. § 3D1.1(a)(3), Counts 1 and 3 were unrelated offenses that should be treated separately and were subject to a multiple count adjustment under U.S.S.G. § 3D1.2(c). The USPO grouped together Counts 1 and 5 pursuant to U.S.S.G. § 3D1.4. The USPO further concluded that Counts 2 and 4 were excluded from the grouping rules because, by statute, any terms of imprisonment imposed would run consecutively to any other term of imprisonment. See U.S.S.G. § 3D1.1(b)(2) (currently U.S.S.G. § 3D1.1(b)(1)(B)). As a result, Movant's combined adjusted offense level was 26. He received a three-level reduction for acceptance of responsibility, for a total offense level of 23 as to Counts 1, 3, and 5. Movant's criminal history category was III, for a sentencing range under the U.S. Sentencing Guidelines of 57 to 71 months incarceration. Movant's statutory sentence as to Count 2 was seven years to life imprisonment, to be served consecutively to any other term of imprisonment. Movant's statutory sentence as to Count 4 was twenty-five years to life imprisonment, to be served consecutively to any other term of imprisonment.
Movant appeared before the court for sentencing on May 17, 2000. He was sentenced to incarceration for a period of 441 months, consisting of 57 months as to Counts 1, 3, and 5, to run concurrently; and 84 months as to Count 2 and 300 months as to Count 4, to be served consecutively to each other and consecutively as to Counts 1, 3, and 5. Judgment was entered on May 19, 2000.
On June 27, 2000, Movant was indicted and charged with escape from confinement, in violation of 18 U.S.C. § 751(a). See United States v. Rice, Cr. No. 8:00-474. Movant pleaded guilty on July 26, 2000 and was sentenced on October 30, 2000 to incarceration for a period of twentyseven months, to be served consecutively to any previous state or federal sentence. Judgment was entered on October 31, 2000.
On April 6, 2001, Movant filed a motion to vacate pursuant to § 2255. See Rice v. United States, C/A No. 7:XX-XXXX-XX. Movant raised the following grounds for relief:
Ground one: Movant asserts that he received ineffective assistance of counsel. Movant alleges that counsel failed to raise meritorious issues on direct appeal; that he inform Movant of the law in relation to the charges pleaded to; that counsel never investigated the charges; that he allowed Movant to plead guilty to unconstitutional issues; and that he allowed Movant to be prosecuted on a defective indictment.
Ground two: Movant asserts that he received ineffective assistance of counsel. Movant asserts that the court lacked jurisdiction over his prosecution in that there was no evidence that either of the businesses robbed was involved in interstate commerce.
Ground three: Movant asserts that he received ineffective assistance of counsel. Movant contends that the court lacked jurisdiction over his prosecution because there was no proof that an executive official authorised the federal prosecution.
Ground four: Movant asserts that he received ineffective assistance of counsel. Movant alleges that his § 924(c) convictions were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).
On April 25, 2002, Movant filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Rice v. United States, C/A No. 9:02-1334-MBS-GCK. By order filed June 14, 2002, the § 2241 petition was dismissed without prejudice to allow Movant to exhaust his prison remedies. On October 17, 2003, Movant filed a motion under 18 U.S.C. § 3582(c)(2) to modify his sentence under Amendment 599 to the Sentencing Guidelines. See Rice v. United States, C/A No. 7:03-3311-MBS.
On February 25, 2004, the court granted summary judgment in favor of the government as to Movant's § 2255 motion, except as to Ground Four, which the court dismissed as moot in light of Movant's § 3582(c)(2) motion. Movant subsequently came before the court on March 16, 2004, for a hearing on his § 3852(c)(2) motion. Movant was resentenced to incarceration for a period of 430 months, consisting of 46 months as to Counts 1, 3, and 5, to run concurrently with Counts 2 and 4; 84 months as to Count 2, to run consecutively to Counts 1, 3, ...